August 1, 1996
Honorable Newt Gingrich Senator Trent Lott
Speaker Majority Leader
United States House of Representatives United States Senate
2428 Rayburn House Office Bldg. 487 Russell Senate Office Bldg.
Washington, D.C. 20515 Washington, D.C. 20510
Honorable Richard A. Gephardt Senator Tom Daschle
Minority Leader Minority Leader
United States House of Representatives United States Senate
1226 Longworth House Office Building 509 Hart Senate Office Building
Washington, D.C. 20515 Washington, D.C. 20510
Honorable Richard K. Armey
Majority Leader
United States House of Representatives
301 Cannon House Office Building
Washington, D.C. 20515
Re: Call for Preservation of the People's Fourth Amendment and Privacy
Rights
Dear Senators Lott and Daschle and Representatives Gingrich, Gephardt and
Armey:
We represent a diverse group of organizations united in our profound
objections to a number of anti-civil liberties proposals being suggested as
a result of recent crimes presumed to be associated with terrorism. Only a
few months ago, Congress passed sweeping anti-terrorism legislation under
pressure of the anniversary of the Oklahoma City bombing. Despite that
legislation, which many of us believe severely impacted freedom in the
United States, recent events have shown that we are no safer. We ask that
Congress carefully weigh any new anti-terrorism legislation, and strip away
from it proposals that would erode civil liberties.
We set forth below a description of the provisions to which we strongly
object because they would violate civil liberties and raise other
constitutional concerns. We also note that many of us strongly object to
other provisions of the anti-terrorism proposals not mentioned here.
Privacy and Proposed Investigations Without Evidence of Criminality
We reject the proposition that law enforcement can investigate people
in the United States -- and compel disclosure of private information --
absent a reasonable indication of criminal activity. The Fourth Amendment
requirement of probable cause of a crime is a bedrock principle of the
American system of justice. Unless the government can demonstrate that it
has a criminal predicate -- evidenced by a court order or a grand jury
subpoena -- the government should not be given access to sensitive or
private information about individuals even if that information is maintained
by third parties. Proposals which would require disclosure of travel and
phone records in counter-intelligence investigations should be rejected.
Proposed Expansions of Wiretapping and the Exclusionary Rule
for Ill-Gotten Electronic Surveillance
Wiretapping is an extremely invasive investigatory technique. Congress
included safeguards in the present statutory scheme for law enforcement
wiretaps that, however inadequate, include specific requirements, explicit
oversight, and checks and balances to reduce violation of privacy and Fourth
Amendment rights that necessarily attend to law enforcement wiretaps. See,
18 U.S.C. sections 2510-2522. Wiretapping proposals in the contemplated
anti-terrorism measures signal a disturbing retreat from this protection,
especially in light of the fact that too many innocent conversations are
already picked up in law enforcement wiretaps. Therefore, provisions that
would expand law enforcement wiretapping powers and allow for courtroom use
of conversations illegally intercepted in a wiretap should be struck from
any proposed bill.
Likewise, digital telephony funding should not be considered because
the FBI has not developed a plan that meets the requirements of the
Electronic Communications Privacy Act and ensures that privacy rights will
be protected.
Conclusion
Any proposed legislation containing these provisions
should be rejected. These provisions would work an unwarranted expansion of
federal law enforcement powers at the expense of civil liberties.
Sincerely,
Tanya K. Metaksa Laura W. Murphy
Executive Director Director
National Rifle Association American Civil Liberties Union
Institute, Legislative Action
James J. Fotis Gerald H. Goldstein and William B. Moffitt Executive Director Immediate Past President and
Law Enforcement Alliance of Legislative Chair; and Treasurer
America Natl. Assn. of Criminal Defense Lawyers
Marc Rotenberg Joseph P. Tartaro
Director President
Electronic Privacy Information Center Second Amendment Foundation*
John M. Snyder and Alan M. Gottlieb David B. Kopel
Director of Public Affairs; and Research Director
Chairman Independence Institute*
Citizens Committee for the Right to
Keep and Bear Arms
* Organization Listed for Identification Purposes Only.
American Civil Liberties Union
(202) 544-1681; (202) 546-0738 (f)
Citizens Committee for the Right to Keep and Bear Arms
(202) 543-3363; (202) 546-2462 (f)
Electronic Privacy Information Center
(202) 544-9240; (202) 547-8388 (f)
David B. Kopel
(303) 279-6536; (303) 279-4176 (f)
Law Enforcement Alliance of America
(703) 847-COPS (2677); (703) 556-6485 (F)
National Association of Criminal Defense Lawyers
(202) 872-8688; (202) 331-8269 (f)
National Rifle Association
Institute for Legislative Action
(703) 267-1144; (703) 267-3973 (f)
Joseph P. Tartaro
(716) 885-6408; (716) 884-4471 (f)